Summary: We will not investigate this complaint about the Council granting planning permission for a development which the complainant can see from his home. There is not enough evidence that fault by the Council has caused the complainant a significant personal injustice, and we cannot achieve some of the outcomes he is seeking.

The complaint

1. Mr X complains about the Council granting planning permission for a development which he can see from his home. In summary, Mr X complains:
• he was not notified about the application.
• the ‘Landscape and Visual Impact Assessment’ (LVIA) submitted by the applicant contained false and misleading statements, and the proposal was contrary to national and local planning policies.
• the Council failed to consider the impact of the development on his listed building.
• the Council did not properly consider lighting and night-time views of the development.
• the application should have been referred to the Planning Committee for determination.

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The Ombudsman’s role and powers

2. We can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. In relation to the first bullet point above, we can consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. And in relation to the second and third bullet points, we do not start an investigation if we decide the impact of the alleged fault a person complains about is not so significant that we should investigate. This means we will normally only investigate a complaint where the complainant has suffered serious loss, harm, or distress as a direct result of faults or failures.

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How I considered this complaint

5. I considered:
• information provided by Mr X and the Council, which included their complaint correspondence.
• information about the planning application on the Council’s website.
• the Council’s Constitution which applied at the time
• the Council’s ‘Statement of Community Involvement’ (SCI) which applied at the time.
• the Ombudsman’s Assessment Code.

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My assessment

6. I appreciate Mr X disagrees with the Council’s decision to grant planning permission for the development. But the Ombudsman is not an appeal body. This means we do not overrule Council decisions, or tell it how it should operate its services. Instead, we look at the processes an organisation followed to make its decision, and consider whether any fault in that process is likely to have affected the planning outcome or caused the complainant a significant injustice.
7. I consider there is not enough evidence to conclude that any fault has affected the planning decision or caused Mr X a significant injustice, so the Ombudsman will not start an investigation. In reaching this view I am mindful that:
• Although Mr X can see the development on the horizon from his property, it is approximately 5km away.
• The Council publicised the application in accordance with its SCI.
• The scheme of delegation enabled the application to be considered under delegated powers. Given the significant amount of time since the decision was made, and that the individuals involved no longer work for the Council, an investigation by the Ombudsman is unlikely to establish why officers chose not to exercise discretion for the application to be determined by the Planning Committee.
• The Council commissioned an independent expert to review the applicant’s LVIA and Heritage Assessment, which resulted in revisions to these assessments.
• Historic England, Gardens Trust, Heritage Trust of Lincolnshire, and the Council’s Conservation, Landscape, and Environmental Protection teams were consulted on the application.
• The visual impact of the development, as well as its impact on other heritage assets (closer to the site than Mr X’s property), is considered in great detail in the main body of the 42-page officer report, with reference to the planning policies identified in Mr X’s complaint.
• The officer report notes the external reviewer’s concerns about the lack of consideration of lighting or night-time views in the LVIA, and again goes on to consider the issue in more detail.
• planning policies may pull in different directions, and it is for the decision-maker to reach a professional judgement on the weight to be attached to the material planning considerations. Mr X may well disagree with the judgement reached, but its merits are not open to review by the Ombudsman.
• I have seen nothing to suggest the planning outcome is likely to have been different if the impact on Mr X’s property had specifically been considered.
• I have also seen nothing to suggest the planning outcome is likely to have been different if a wider ‘zone of theoretical visibility’ in the LVIA (to include Mr X’s property), had been considered.
8. We also cannot achieve some of the outcomes Mr X is seeking, as we cannot direct the Council to rescind the planning permission, or dictate what its scheme of delegation and SCI should include.

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Final decision

9. We will not investigate Mr X’s complaint because there is not enough evidence that fault by the Council has caused the complainant a significant personal injustice, and we cannot achieve some of the outcomes he is seeking.

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Investigator's decision on behalf of the Ombudsman